In 2008, Mr. Davis, along with David Kopel and C. D. Michel submitted an Amicus Brief to the United States Supreme Court on behalf of a majority of California District Attorneys and other law enforcement associations in Heller v. District of Columbia, the seminal case on whether the Second Amendment provides an individual right to bear arms.
CalGuns Foundation Wiki Summary
District of Columbia v. Heller, 554 U.S. 570 (2008), was a landmark case in which the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual’s right to possess a firearm for traditionally lawful purposes in federal enclaves, such as self-defense within the home. The decision did not address the question of whether the Second Amendment extends beyond federal enclaves to thestates, which was addressed later by McDonald v. Chicago (2010). It was the first Supreme Court case in United States history to decide whether the Second Amendment protects an individual right to keep and bear arms.
On June 26, 2008, the Supreme Court affirmed the Court of Appeals for the D.C. Circuit in Parker v. District of Columbia. The Court of Appeals hadstruck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional, determined that handguns are “arms” for the purposes of theSecond Amendment, found that the District of Columbia’s regulations act was an unconstitutional banning, and struck down the portion of the regulations act that requires all firearms including rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock.” “Prior to this decision the Firearms Control Regulation Act of 1975 also restricted residents from owning handguns except for those registered prior to 1975.”
In 2002, Robert A. Levy, a Senior Fellow at the Cato Institute, began vetting plaintiffs with Clark M. Neily III for a planned Second Amendment lawsuit that he would personally finance. Although he himself had never owned a gun, as a Constitutional scholar he had an academic interest in the subject and wanted to model his campaign after the legal strategies of Thurgood Marshall, who had successfully led the challenges that overturned school segregation. They aimed for a group that would be diverse in terms of gender, race, economic background, and age, and selected six plaintiffs from their mid-20s to early 60s, three men and three women, four white and two black:
Previous federal case law pertaining to the question of an individual’s right to bear arms included United States v. Emerson, 270 F.3d 203 (5th Cir. 2001) which supported the right and Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) which opposed the right. The Supreme Court ruling in United States v. Miller, 307 U.S. 174 (1939) was interpreted to support both sides of the issue.
In February 2003, the six residents of Washington, D.C. filed a lawsuit in the District Court for the District of Columbia, challenging the constitutionality of provisions of the Firearms Control Regulations Act of 1975, a local law (part of the District of Columbia Code) enacted pursuant to District of Columbia home rule. This law restricted residents from owning handguns, excluding those grandfathered inby registration prior to 1975 and those possessed by active and retired law enforcement officers. The law also required that all firearms including rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock.” District Court Judge Ricardo M. Urbina dismissed the lawsuit.
On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed the dismissal in a 2-1 decision. The Court of Appeals struck down provisions of the Firearms Control Regulations Act as unconstitutional. Judges Karen L. Henderson, Thomas B. Griffith and Laurence H. Silberman formed the Court of Appeals panel, with Senior Circuit Judge Silberman writing the court’s opinion and Circuit Judge Henderson dissenting.
The court’s opinion first addressed whether appellants have standing to sue for declaratory and injunctive relief in section II (slip op. at 5–12). The court concluded that of the six plaintiffs, only Heller — who applied for a handgun permit but was denied — had standing.
The court then held that the Second Amendment “protects an individual right to keep and bear arms”, saying that the right was “premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad).” They also noted that though the right to bear arms also helped preserve the citizen militia, “the activities [the Amendment] protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.” The court determined that handguns are “Arms” and concluded that thus they may not be banned by the District of Columbia; however, they said that Second Amendment rights are subject to reasonable restrictions.
The court also struck down the portion of the law that requires all firearms including rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock.” The District argued that there is an implicit self-defense exception to these provisions, but the D.C. Circuit rejected this view, saying that the requirement amounted to a complete ban on functional firearms and prohibition on use for self-defense:
Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional.
In her dissent, Circuit Judge Henderson stated that Second Amendment rights did not extend to residents of Washington D.C., writing:
To sum up, there is no dispute that the Constitution, case law and applicable statutes all establish that the District is not a State within the meaning of the Second Amendment. UnderUnited States v. Miller, 307 U.S. at 178, the Second Amendment’s declaration and guarantee that “the right of the people to keep and bear Arms, shall not be infringed” relates to the Militia of the States only. That the Second Amendment does not apply to the District, then, is, to me, an unavoidable conclusion.
In April 2007, the District and Mayor Adrian Fenty petitioned for rehearing en banc, arguing that the ruling creates inter- and intra-jurisdictional conflict. On May 8, the Court of Appeals for the D.C. Circuit denied the request to rehear the case, by a 6-4 vote.
The defendants petitioned the United States Supreme Court to hear the case. The plaintiffs did not oppose but, in fact, welcomed the petition. The Supreme Court agreed to hear the case on November 20, 2007. The court rephrased the question to be decided as follows:
The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?
Because of the controversial nature of the case, it garnered much attention from many groups on both sides of the gun rights issue. Many of those groups filed amicus curiae (friend of the court) briefs, about 47 urging the court to affirm the case and about 20 to remand it.
A majority of the members of Congress signed the brief authored by Stephen P. Halbrook advising that the case be affirmed overturning the ban on handguns not otherwise restricted by Congress. Vice President Dick Cheney joined in this brief, acting in his role as President of the United States Senate, and breaking with the George W. Bush administration’s official position.Then Republican candidate for President and Arizona Senator John McCain also signed the brief. Democratic candidate, the Illinois Senator Barack Obama did not.
A majority of the states signed the brief of Texas Attorney General Greg Abbott advising that the case be affirmed, while at the same time emphasizing that the states have a strong interest in maintaining each of the states’ laws prohibiting and regulating firearms. Law enforcement organizations, including the Fraternal Order of Police and the Southern States Police Benevolent Association, also filed a brief urging that the case be affirmed.
A number of organizations signed friend of the court briefs advising that the case be remanded, including the United States Department of Justice and Attorneys General of New York, Hawaii,Maryland, Massachusetts, New Jersey, and Puerto Rico. Additionally, friend of the court briefs to remand were filed by a spectrum of religious and anti-violence groups, a number of cities and mayors, and many police chiefs and law enforcement organizations.
The Supreme Court heard oral arguments in the case on March 18, 2008. Both the transcript and the audio of the argument have been released. Each side was initially allotted 30 minutes to argue its case, with U.S. Solicitor General Paul D. Clement allotted 15 minutes to present the federal government’s views. During the argument, however, extra time was extended to the parties, and the argument ran 23 minutes over the allotted time.
Walter E. Dellinger of the law firm O’Melveny & Myers, also a professor at Duke University Law School and former Acting Solicitor General, argued the District’s side before the Supreme Court. Dellinger was assisted by Thomas Goldstein of Akin Gump Strauss Hauer & Feld, Robert Long of Covington & Burling and D.C. Solicitor General Todd Kim. The law firms assisting the District worked pro bono.
Alan Gura, of the D.C.-based law firm Gura & Possessky, was lead counsel for Heller, and argued on his behalf before the Supreme Court. Robert Levy, a senior fellow at the Cato Institute, and Clark Neily, a senior attorney at the Institute for Justice, were his co-counsel.
The Supreme Court held:
The core holding in D.C. v. Heller is that the Second Amendment is an individual right intimately tied to the natural right of self-defense.
The Scalia majority invokes much historical material to support its finding that the right to keep and bear arms belongs to individuals; more precisely, Scalia asserts in the Court’s opinion that the “people” to whom the Second Amendment right is accorded are the same “people” who enjoy First and Fourth Amendment protection: “‘The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’ United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings….”
With that finding as anchor, the Court ruled a total ban on operative handguns in the home is unconstitutional, as the ban runs afoul of both the self-defense purpose of the Second Amendment—a purpose not previously articulated by the Court—and the “in common use at the time” prong of the Miller decision: since handguns are in common use, their ownership is protected.
The Court applies as remedy that “[a]ssuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.” The Court, additionally, hinted that other remedy might be available in the form of eliminating the license requirement for carry in the home, but that no such relief had been requested: “Respondent conceded at oral argument that he does not ‘have a problem with . . . licensing’ and that the District’s law is permissible so long as it is ‘not enforced in an arbitrary and capricious manner.’ Tr. of Oral Arg. 74–75. We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement.”
In regard to the scope of the right, the Court wrote, in an obiter dictum, “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
The Court also added dicta regarding the private ownership of machine guns. In doing so, it suggested the elevation of the “in common use at the time” prong of the Miller decision, which by itself protects handguns, over the first prong (protecting arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”), which may not by itself protect machine guns: “It may be objected that if weapons that are most useful in military service—M16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home.”
The Court did not address which level of judicial review should be used by lower courts in deciding future cases claiming infringement of the right to keep and bear arms: “[S]ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.” The Court states, “If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.” Also, regarding Justice Breyer’s proposal of a “judge-empowering ‘interest-balancing inquiry,'” the Court states, “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach.”
In a dissenting opinion, Justice John Paul Stevens stated that the court’s judgment was “a strained and unpersuasive reading” which overturned longstanding precedent, and that the court had “bestowed a dramatic upheaval in the law”. Stevens also stated that the amendment was notable for the “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense” which was present in the Declarations of Rights of Pennsylvania and Vermont.
The Stevens dissent seems to rest on four main points of disagreement: that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended; that the “militia” preamble and exact phrase “to keep and bear arms” demands the conclusion that the Second Amendment touches on state militia service only; that many lower courts’ later “collective-right” reading of the Miller decision constitutes stare decisis, which may only be overturned at great peril; and that the Court has not considered gun-control laws (e.g., the National Firearms Act) unconstitutional. The dissent concludes, “The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons…. I could not possibly conclude that the Framers made such a choice.”
Justice Breyer filed a separate dissenting opinion, joined by the same dissenting Justices, which sought to demonstrate that, starting from the premise of an individual-rights view, the District of Columbia’s handgun ban and trigger lock requirement would nevertheless be permissible limitations on the right.
The Breyer dissent looks to early municipal fire-safety laws that forbade the storage of gunpowder (and in Boston the carrying of loaded arms into certain buildings), and on nuisance laws providing fines or loss of firearm for imprudent usage, as demonstrating the Second Amendment has been understood to have no impact on the regulation of civilian firearms. The dissent argues the public safety necessity of gun-control laws, quoting that “guns were responsible for 69 deaths in this country each day.'”
With these two supports, the Breyer dissent goes on to conclude, “there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.” It proposes that firearms laws be reviewed by balancing the interests (i.e., “‘interest-balancing’ approach”) of Second Amendment protections against the government’s compelling interest of preventing crime.
The Breyer dissent also objected to the “common use” distinction used by the majority to distinguish handguns from machineguns: “But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machine-gun…There is no basis for believing that the Framers intended such circular reasoning.”